Chapter III — On those who can enter upon contracts validly and lawfully; on the solemnity of law that is necessary; what firmness an oath adds to a contract; to whom restitution *in integrum* belongs

I. QUESTION I. Who can enter upon a contract? ANSWER. All who are endowed with the use of reason, and have the free administration of their own goods. Hence infants lacking the use of reason, madmen, the demented, the drunken, the sleeping, prodigals, wards before the fourteenth year, and minors before the twenty-fifth, cannot enter upon contracts without the assent of curators and guardians. Prodigals, nevertheless, must have been declared unfit for contracting by a judge. He is called a ward who has not attained the year of puberty. This year in males is the fourteenth, in females the twelfth. The age next to puberty is in males the tenth year up to the fourteenth; in females the ninth and a half up to the twelfth. They are called minors who have not completed the twenty-fifth year: after it they are called majors. Wards and minors, when they are capable of guile, can enter upon contracts concerning goods of which they themselves have the free administration, such as are goods which are conferred upon them either by parents, or by guardians, or by friends, that they may use them at liberty. These commonly require, even for this disposition of goods, the age next to puberty; which opinion I approve: because before this age they do not so possess the use of reason that they can enter upon contracts with astute and crafty men. But immovable goods, or movable goods which by keeping can be kept, wards and minors cannot alienate without the faculty of a judge, which cannot be granted without just cause, because the laws so dispose. A minor can contract concerning movable goods, if he lack a curator, and can use the benefit of restitution in integrum, if he be injured; otherwise a ward, to whom administration is forbidden. But the faculty of a curator or guardian being had, both a minor and a ward can contract concerning movable goods which by keeping cannot be kept, and can undergo an obligation both natural and civil. Those movable goods are said to be able to be kept by keeping which can be kept beyond three years, as gold, gems, and the rest of that kind. Those which do not last beyond three years are said to be unable to be kept by keeping. If wards and minors, without the licence of guardians and curators, enter upon contracts concerning those goods of which with the faculty of the same they can dispose, the contracts are null in each forum, the civil and that of conscience.

II. QUESTION II. What solemnity of law is required for the validity of a contract? ANSWER. Solemnity is twofold: one accidental, the other substantial. That which regards the substance of the contract, it being lacking, there is no contract; but if the former solemnity be lacking, it does not destroy the contract made. Whence is this diversity of accidental and substantial solemnity to be gathered? From the diversity of laws. One law forbids a contract without this or that formula, yet does not annul it. This is called accidental, and does not dissolve the contract: whence comes that proverb: Many things done hold good which are forbidden to be done. Another law, which not only forbids but also annuls a contract made without this or that formula, is substantial, and makes the contract null, if the prescribed rite be lacking.

III. Authors dispute whether a contract destitute of substantial solemnity is valid at least in the forum of conscience. All confess that contracts of matrimony and of monastic profession are null in each forum, if the prescribed solemnities be lacking. But they disagree concerning other contracts. Many affirm that contracts destitute of substantial solemnity, which in the exterior forum are null, are valid in the forum of conscience. To me it is more probable that they are null in each forum: since all the goods of subjects are subject to the government and direction of the supreme powers, regard being had to the order of carrying out public commerce. Therefore subjects are bound in each forum to observe the forms and rites prescribed by the supreme powers, by which human society is governed and public commerce is directed to the public good. Unless all things deceive me, it is a manifest error, hostile to human society and to public commerce, to assert that subjects are not bound in the forum of conscience to the observance of those laws. For the Apostle says, Romans 13: Let every soul be subject to higher powers. For there is no power but from God. Many other things I pass over for brevity's sake.

IV. QUESTION III. How does an oath confirm contracts void by natural or by positive law? ANSWER. It is certain that an oath does not confirm a contract null by natural law, because an oath cannot change the nature and essence of contracts. As regards contracts voidable by positive law, when the law annuls or declares the contract rescindable in hatred of the creditor, then it is certain that the contract is not confirmed by the oath: because then the law deprives the creditor of any action whatsoever against the swearer. Thus he who swears to a robber, a usurer, or others, out of grave fear, that he will pay a hundred, this promise is not ratified by the oath, nor valid; and robbers or usurers acquire no right against such a promiser who swears; the oath nevertheless, on account of the majesty of the divine name and the reverence due to it, is to be observed. When a contract is decreed rescindable by law on account of the public good and the common utility, likewise it is not confirmed by an oath: because then the contract is unlawful and null. But an oath is not the bond of an unlawful and depraved thing.

V. QUESTION IV. To whom does the benefit of restitution in integrum belong? ANSWER. Restitution in integrum is the reintegration of the former state made by the judge's authority: which benefit has been instituted chiefly in favour of minors, and has place when the contract, the form of law being regarded, was valid and ratified; but a minor was injured in it before the completed twenty-fifth year, and therefore by the judge's authority he is recalled to his former state. This recalling to the former state is made either by rescinding the contract, or by increasing the price in which the minor was injured. A notable injury is nevertheless required, that this benefit may be sought. This restitution in integrum has place in the contract of sale, if the minor was injured, either because he sold for less than the just price, or because he sold a thing which he ought not to have sold. Again, if a minor receive money on loan, and squander it, he is not bound to restore save that in which he has been made richer. But if the contract be according to the formulas of law and the rules of equity, restitution in integrum has no place.